Medicare has lifted its ban on coverage for gender reassignment surgery thanks to the conclusions of an independent review that found existing policy was “not reasonable” given current understanding of the procedure.

In a 28-page report, an appellate review board within the Department of Health & Human Services determined that banning coverage for transsexual reassignment surgery isn’t valid under a “reasonableness standard” based on clinical and scientific judgment.

“We have no difficulty concluding that the new evidence, which includes medical studies published in the more than 32 years since issuance of the 1981 report underlying the NCD, outweighs the NCD record and demonstrates that transsexual surgery is safe and effective and not experimental,” the report says. “Thus, as we discuss below, the grounds for the NCD’s exclusion of coverage are not reasonable, and the NCD is invalid.”

The ban on Medicare coverage for gender reassignment surgery — which was codified as National Coverage Determination 140.3 — was put in place in 1981 based on an understanding at the time the procedure was unsound. Since that time, the American Medical Association and the American Psychological Association have come to support gender reassignment surgery, and doctors prescribe it as treatment for gender dysphoria.

Aaron Albright, a spokesperson for the Centers for Medicare & Medicaid, said his agency will now carry out the new policy through contractors, who will determine on a case-by-case basis whether coverage is appropriate.

“The national policy barring Medicare from covering gender transition surgery has been invalidated by HHS’s Departmental Appeals Board,” Albright said. “As with all such determinations, CMS will carry out this independent board’s ruling through Medicare Administrative Contractors, who manage Medicare claims payment systems. These contractors may cover this care case-by-case or under a local coverage determination based on clinical evidence to determine medical appropriateness.”

The decision responds to an administrative challenge filed by the American Civil Liberties Union, Gay & Lesbian Advocates & Defenders, the National Center for Lesbian Rights and civil rights attorney Mary Lou Boelcke last year. The four groups praised the outcome of the challenge in a statement.

“This decision removes a threshold barrier to coverage for medical care for transgender people under Medicare,” the advocates said. “It is consistent with the consensus of the medical and scientific community that access to gender transition-related care is medically necessary for many people with gender dysphoria. The removal of the exclusion of coverage for surgical care for Medicare recipients means that individuals will not automatically have claims of coverage for gender transition-related surgeries denied. They should either get coverage or, at a minimum, receive an individualized review of the medical need for the specific procedure they seek, just like anyone seeking coverage for any other medical treatment.”

The groups filed the complaint on behalf of Denee Mallon, an Arizona transgender woman in her 70s who’s on Medicare and was prescribed gender reassignment surgery by her doctors to alleviate her severe gender dysphoria.

The Centers for Medicare & Medicaid didn’t put up a fight in response to the request from LGBT advocates to lift the ban. According to the memo, CMS notified the board in June that it wouldn’t submit a response to their request to lift the ban.

In a statement, Mallon also expressed satisfaction with the decision, saying it will enable her to obtain a badly needed procedure.

“This decision means so much to me and many other transgender people,” Mallon said. “I am relieved to know that my doctor and I can now address my medical needs, just as other patients and doctors do.”

Chris Johnson is Chief Political & White House Reporter for the Washington Blade. Johnson attends the daily White House press briefings and is a member of the White House Correspondents' Association.
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